‘Essential worker’ claiming vaccine side effects now seeks workers’ comp

A Cedar Rapids city employee is seeking workers’ compensation benefits for injuries he attributes to the city's repeated promotion of the COVID-19 vaccine. (Photo by Getty Images; seal courtesy the State of Iowa)

A Cedar Rapids city employee is seeking workers’ compensation benefits for injuries he attributes to the city’s repeated promotion of the COVID-19 vaccine.

State and court records indicate that in April 2021, the City of Cedar Rapids began hosting vaccine clinics and sending out emails and newsletters encouraging, but not requiring, city employees to get the vaccine.

One such newsletter stated, “It takes everyone. We all need to step up to beat COVID-19. We ask you to join us in protecting your community by getting vaccinated.”

A subsequent email stated, “THE CITY OF CEDAR RAPIDS ENCOURAGES YOU TO GET VACCINATED!”

Larry Driscoll, then a 51-year-old manager for the city’s public works department, decided to get the Johnson & Johnson vaccine against COVID-19.

“I felt that it was the proper things to do since we’re all essential workers,” Driscoll said later in a deposition. “I just felt that it was a good option for me to lead the department to just ensure that my guys didn’t get sick from me.”

After suffering from side effects allegedly caused by the vaccine – including fatigue, facial drooping, loss of balance, and weakness or numbness throughout his body — Driscoll filed a workers’ compensation claim, arguing his issues stemmed from his work for the city.

The city didn’t dispute Driscoll’s injuries or his account of its efforts to get city workers vaccinated, but it did argue that the vaccine and Driscoll’s resulting health issues didn’t arise from his employment with the city.

In January, Workers’ Compensation Commissioner Joseph Cortese II reviewed the matter and ruled that while the city had clearly encouraged workers to get vaccinated, it did not require workers to do so, and he denied Driscoll’s application for benefits.

Cortese noted that the city offered workers no financial incentives for getting vaccinated and did not penalize those who opted to refrain from being vaccinated. Instead, Cortese found, the city pursued a policy that was generally in the best interests of the workers and the community.

“If an employer strongly urged its employees to eat healthy and consume green vegetables, it would be seem strange to conclude that an employee who choked on some broccoli at home would have sustained an injury that arose out of his employment,” Cortese stated in his ruling.

Driscoll is now appealing that decision by taking the case to Polk County District Court, where he’s seeking judicial review of the matter. In court filings, Driscoll’s attorneys note that their client scheduled his vaccination appointment using a work computer, during work hours, through a city-provided link. In addition, they say, city employees were told they could use up to two hours of pay under the city’s “healthy workplace leave policy” to get the vaccine during work hours.

They also argue the case should be treated in the same manner as a college professor who died of a heart attack during an intramural softball game. In that case, benefits were awarded on the basis of the game being staged to further the school’s goal of improved relations between faculty and students.

Driscoll’s situation, his lawyers have told the court, “is analogous to recreational or social activities, where injuries are compensable when an employee engages in an activity that provides a substantial benefit to the employer beyond the intangible value of improvement in employee health and morale.”

Oral arguments in the case are scheduled for May 17.

School districts penalized for late payments

Among the other recent workers’ compensation cases in Iowa are two in which school districts have been penalized for delayed workers’ comp payments to employees.

In the first case, Graciela de Maldonado sought a penalty against the Waterloo Community School District and United Wisconsin Insurance Company, arguing they had unreasonably delayed paying out her weekly workers’ compensation benefits for a 2017 workplace injury.

In 2019, the district and the insurer were ordered to pay 325 weeks of permanent partial disability benefits, backdated to December 2018 and continuing through February 2025.

Erin Pals, deputy workers’ compensation commissioner for the state, recently reviewed the matter and concluded that on several occasions, the district delayed the payment of weekly benefits that total $5,785, with the delays ranging from one to four weeks.

In her decision, Pals wrote that the district and its insurer “offered varying theories on what may have happened to cause the delays,” blaming de Maldonado’s attorney or the U.S. Postal Service without offering any evidence to support those claims.

Pals wrote that it appeared the district and its insurer “do not know, or will not say,  why the payments were stopped.”

Pals imposed a penalty of $2,892 – an amount equal to half the total of all delayed payments, which is typically considered the maximum allowable penalty in such cases. She also imposed a sanction against the district and the insurer for failure to adequately respond to information requests in the case, awarding de Maldonado an additional $900 for attorneys’ fees.

In the second case, the Johnston Community School District, which is self-insured, appealed a September 2023 arbitration decision in a case involving district employee Nijaz Ikeljic.

Ikeljic had been awarded 250 weeks of workers’ compensation benefits related to a partial disability caused by workplace injuries to his neck and left arm. As part of the arbitration decision, the school district was also ordered to pay a $500 penalty for unreasonable delays in paying benefits and pay for Ikeljic’s expenses in arbitration.

Workers’ Compensation Commissioner Joseph Cortese II recently upheld the arbitration decision in its entirety, awarding Ikeljic 250 weeks of benefits at $519 per week, plus the $500 penalty and arbitration expenses.

State records indicate Ikeljic continues to work for the district and is now employed in a position that pays higher wages than the job he held at the time of his injury.

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